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Even to the most unindoctrinated, retired visiting Judge Richard Markus of Ohio has so many conflicts of interest involving former Oak Harbor lawyer Elsebeth Baumgartner, it's hard to imagine why the Ohio Court System allows him to be involved in any matter involving the Baumgartner family and certainly not in lodging any monetary judgments against them.
In fact, at age 75, it's a mystery why the retired judge is still allowed to be presiding in any case considering the Constitutional age limitation for judges is 70.
Markus, 75, presided over a libel trial in December, 2004, brought against Dr. Baumgartner by Kellen Smith, a former member of the Benton-Carroll-Salem Board of Education, the same school board of which Dr. Baumgartner's husband, Joseph, had been a member.
Although Dr. Baumgartner did not testify in her own behalf and there was no credible proof submitted, Markus found Baumgartner guilty in what many said was a pre-determined decision, and assessed a $175,000 judgment against her.
He then cited her for 34 counts of contempt as a result of her allegedly calling him corrupt and cited her husband for contempt. Markus then also filed a criminal complaint against Dr. Baumgartner, claiming that she had intimidated him and threatened him before the libel trial by sending him emails. However, although he claimed he felt threatened and intimidated, he failed to disqualify himself for the trial and lodged the judgment against her.
Dr. Baumgartner has been a long-time critic of Ohioan government, both local and state, alleging massive federal and state grant fraud as well as abuses of power by public officials, particularly Erie County district attorney Kevin Baxter and numerous judges in northern Ohio.
Baumgartner has teamed up with Bryan DuBois in the publication of Erie Voices, www.erievoices.com/blog, a website that publishes articles and opinion alleging misconduct by public officials in several northern Ohio counties including Cuyahoga, Erie, Lucas and Ottawa.
She now faces 10 counts of intimidation and three counts of retaliation, third-degree felonies, and one count of possession of criminal tools, (a computer) a fifth-degree felony as a result of Markus' complaint.
The Baumgartners say that Markus is biased against them and Elsebeth claims that Markus is engaged in case fixing. Markus had previously ruled that Joe Baumgartner's eyewitness testimony that his wife had been assaulted by a Benton-Carroll-Salem school official was "preposterous".
In March, Markus entered a $26,000 sanction against Joe Baumgartner for "frivolous activity" when he attempted to defend himself in the civil proceedings that were being prosecuted against himself and his wife.
But despite all of the conflicts in the case and a bankruptcy filing by Dr. Baumgartner, Kellen Smith and attorney Stephen Mosier are still trying to collect the $175,000 judgment and as of Thursday evening, Dr. Baumgartner was served with a amendment order for a debtor's examination before Markus on Tuesday, Oct. 4.
Markus has obtained an order of protection against Dr. Baumgartner but yet he continues to preside on matters pertaining to her and her family and so far, Chief Judge Thomas Moyer has not interceded.
Although the examination order is allegedly four pages, only three pages were provided by Mosier, Kellen Smith's attorney, to Dr. Baumgartner. She has been ordered to produce all financial records pertaining to her own personal and business affairs including tax returns, as well as a company owned by her, Cleveland Genomics Inc.
However, Dr. Baumgartner maintains that Mosier failed to obtain the requisite case number to execute the $175,000 judgment which she says was allegedly obtained by perjured testimony entered by former BCS Supt. Charles Burns and by other alleged fraud on the court. She says that Mosier is instead using a case number obtained to execute a separate $400 sanctions award imposed by Markus against Cleveland Genomics Inc. even though the firm had won its case. She says that judgment was paid this past January.
Dr. Baumgartner also says that Mosier never filed nor served her with process to execute the judgment against her. She says that the documents show that Mosier had faxed them to Judge Markus on Sept. 21 ex parte and that Markus had returned a fax to Mosier on Sept. 23 through his "private rent-a-judge company" which she maintains constitutes a prohibited co-mingling of private judicial services and visiting judge services information and resources. Although Markus indicates that he sent four pages to Mosier, she says that Mosier only included three pages in his email to her on Thursday which constituted a notice of service.
She maintains that there is no signed order for the debtors examination which she says is likely the missing fourth page. "I am left to assume that you are proposing to have me submit to a debtor's examination requesting I bring in all sorts of unrelated documents in two business days without a signed order or having even been served in the first place", she told Mosier. "As usual, you made no attempt to arrange a mutually convenient time".
In a letter to Mosier protesting the improper service and incomplete order, she advised him that if he was "serious about executing Mr. Smith's judgment that you foreclose on my real property in Ottawa County instead of wasting time with harassing examinations which will not reveal the information you are not already privy to through filings in U.S. Bankruptcy Court. Of course, a foreclosure action will provide me with an opportunity to challenge the void judgment and demand a jury trial, something that can't be allowed to happen because then it would become obvious that the judgment was in fact awarded illegally in the first place".
Dr. Baumgartner told Mosier that it was her intent to seek a protective order from Judge Shirley Strickland Saffold of Cuyahoga County Common Pleas Court, the judge who is presiding in the criminal case against Baumgartner.
"I also intend to file a formal complaint with the Cuyahoga County Common Pleas Court judge's committee seeking inquiry into the propriety of Judge Richard Markus' use of his office to obtain criminal indictments on his critics in the press in light of Judge Russo's concerns with the abuse by visiting and private judges of the public's resources in the court".
"Judge Markus is an adverse witness against me in two criminal matters--a 21-count indictment in Cuyahoga County and 34 alleged criminal contempt citiations in Ottawa County. Both cases seek to criminally punish speech critical of government as prohibited by the First Amendment and over 60 years of U.S. Supreme Court precedent holding judges can not punish speech critical of their actions", Baumgartner told Mosier.
"As a result of his testimony before a Cuyahoga County Grand jury, I was held in the "hole" in the Cuyahoga County jail for 10 days and incarcerated for 24 days total on a $360,000 bond for non violent crimes for reporting the alleged involvement of organized crime in controlling case outcomes in Ottawa, Erie and Cuyahoga Counties through manipulation of the prosecutor's offices and visiting judge appointments in those counties".
Dr. Baumgartner says that the case record reflects that Judge Markus was communicating with Assistant Cuyahoga County prosecutor Dan Kasaris and spoke with Cuyahoga County sheriff staff on or about Dec. 21 2004, just after he awarded Smith the $175,000 judgment. "Later that month Judge Markus entered two additional criminal contempt citations for my calling him a private judge even though he is president of Private Judicial Services, Inc. a for-profit company that has exploited public resources for overhead since 1989. From the years 1989 until 1998 Judge Markus also practiced law as partner of Porter & Wright while exploiting public resources for personal gain yet he has never disclosed any conflicts of interest to any of the parties in cases in which he appeared as a retired visiting judge starting in 1998", Dr. Baumgartner says. "While Judge Markus' resume claims he retired as a judge from the Eighth Appellate District court in 1988 after which he practiced law and judging for profit, he claims to have retired as a Cuyahoga County Common Pleas Court judge in 1998 so that he could be a visiting judge".
"I suspect he was the recipient of a one week political appointment so he could become a visiting judge after he lost several high profile cases at Porter & Wright", Baumgartner comments. "Interestingly, one of his biggest losses was at the Ohio Supreme Court where he tried to argue that private firms that provide government services such as the Cuyahoga County Ombudsmen's office shouldn't be required to disclose results of child abuse investigations. Last year at the age of 74, Judge Markus was reversed in two cases on basic legal procedural errors. In one case he tried to restrict the public's right to know and in another he tried to exert jurisdiction where he had none for what facially looked like an alleged effort to control a case outcome Obviously that's a huge concern to me in view of my allegations that Judge Markus has gone to great lengths to cover up claims of child abuse and or financial irregularities involving Benton Carroll Salem Locals Schools officials, the Ottawa County prosecutor, Erie County prosecutor Kevin Baxter and several attorneys in Erie and Ottawa Counties while awarding what I claim are sham judgments to some of those same politicians and lawyers".
Dr. Baumgartner says that at the time Judge Markus is alleged to have approached assistant Cuyahoga County Prosecutor Dan Kasaris, he was presiding over two highly political criminal cases (redemptionist case and gambling ring case) involving alleged organize crime figure Charles Columbo and many other defendants whom Dan Kasaris was prosecuting. "Mr Kasaris has been able to obtain convictions and/or plea deals on the all the low level participants but oddly Mr. Columbo seems to escape unscathed", Baumgartner charges. "Judge Markus keeps granting continuances after making financial awards to the Cuyahoga County prosecutor's office and Mr Kasaris' resident police force (North Royalton -where Kasaris is running for public office) from the plea deals".
"A witness claims that Mr Kasaris bragged that Judge Markus approached him after awarding him a verdict in the cases and explained that Elsebeth Baumgartner and Bryan DuBois of the internet investigative journal Erie Voices were "problems that needed to be handled", Baumgartner says. "Apparently Judge Markus doesn't like reporters exposing his questionable business connections and bench practices involving Private Judicial Services Inc., the rent-a-judge company which are now being questioned by several sitting Cuyahoga Common Pleas Court judges and the Cleveland Plain Dealer as well".
The former lawyer says she obtained from the Supreme Court of Ohio the record of judicial assignments for Judge Markus dating back to 1998. "Those documents reveal a disturbing pattern of being hand-picked by sitting judges who recused themselves due to some unstated conflicts on cases involving members of organized crime, corrupt public officials and or critics of the judicial system", Dr. Baumgartner says. "Invariably Judge Markus is very soft on organized crime figures and corrupt public officials but throws the book at critics questioning judicial practices", she charges. "What is particularly disturbing to me is how obviously the visiting judge system is being used to promote judge shopping by those with the connections to do so. There is simply no attempt whatsoever to ensure that a neutral and detached jurist is assigned the case, rather judges with an express interest in the case are chosen".
"Moreover, Judge Markus, despite being the recipient of public money as a visiting judge and having his private company's overhead paid for by taxpayers while claiming for profit status and taking advantage of tax deductions (his office is run from his home and his car bears the name of Private Judicial Services, Inc) absolutely refuses to comply with ethics disclosures concerning clients of his private judicial services company", Dr. Baumgartner continues. "Thus there is no way for a party to a case to which he is assigned as a visiting judge to learn whether Judge Markus has had prior dealings with parties or lawyers to the case wherein he was paid for services".
She told Mosier that for example, case records indicate that Markus worked with Mosier's former firm on a case and was involved with the National Institute for Trail Advocacy with Dennis O'Toole, name partner of Baumgartner & O'Toole, (no relation) "the law firm my husband alleges fraudulently billed BCS schools and defended your client without a valid insurance claim. Further, as recently as June 2005, Judge Markus was selling his office at seminars promoting his private services to major insurance defense law firms", she alleges. "What chance does an under-funded plaintiff have in a case to which Markus is assigned as a visiting judge by the state when the plaintiff has to take on an insurance defense firm such as Baumgartner and O'Toole that likely provides a lot of business to Judge Markus?"
"Judge Markus is now claiming that my filing documents in defense of myself against insurance funded attorneys questioning his judicial and your attorney misconduct and reporter Bryan DuBois' reporting that misconduct constitutes multiple acts of felony intimidation and retaliation", Baumgartner told Mosier. "As a result, Judge Markus obtained a 21-count indictment against both of us in Cuyahoga County even though none of the alleged acts occurred in Cuyahoga County".
"Judge Markus was the sole witness before that grand jury. Evidence adduced before Judge Shirley Strickland Saffold indicates that Judge Markus allegedly entered false and or misleading testimony before that grand jury in order to obtain the indictment which was not a court approved document. The words true bill are nowhere to be found and Dan Kasaris admitted to typing it up himself on his computer. Not surprisingly the same suspect indictment form was used to indict Charles Columbo and his gambling ring associates on that highly politicized case as well", Baumgartner says.
"Dan Kasaris presented the case to the Grand Jury. He obtained a 21-count Indictment with only one hour of testimony from Judge Markus and after brief deliberation by the Grand Jury, even though the documents alleged to have been used as false documents to intimidate the judge takes longer than one hour to read. Then without allowing the Grand Jury foreman to return that Indictment to the clerk as required by law he obtained a $360,000 cash property only bond on me and a $150,000 cash property only bond on Bryan DuBois by appearing before Chief Judge Richard Mc Monagle who had hand selected Judge Markus for the cases involving the reputed mobster Charles Columbo. At my arraignment I was force- appointed a court attorney even though Judge Peter Corrigan who had selected the Grand Jury foreman on the case did not inquire into my indigency status as required. The outrageous bond was continued and Judge Corrigan denied me the right to present any argument on why it ought to be reduced. In fact my husband was barred from the arraignment. Later, Dan Kasaris admitted he knew I was not indigent and boasted of how I was not able to contact any attorneys while he had me held illegally in the hole".
"The Court ordered Judge Markus and me to avoid contact. I face over 60 years incarceration for complaining about Judge Markus and the visiting and private judge systems while Cleveland area reporters publish the opinions of people who agree with me", Baumgartner continued.
Baumgartner told Mosier "I am troubled by Judge Markus's continued participation in this case. Moreover he continues to preside over matters involving my husband and you even though you are also a prosecution witness against me along with Judge Markus".
"Obviously my defense in my criminal case will require me to subpoena all communications between Judge Markus Chief Justice Tom Moyer and the Supreme Court, Kellen Smith and you. including all emails through your companies and to unseal the documents filed by you in support of the $26,000 sanctions award against my husband based on what I allege to be fraudulent invoices. I maintain you submitted false invoices unrelated to defending Mr. Smith against my claims that he assaulted me but in fact are costs associated with prosecuting his private libel cause against me for reporting him. Judge Markus continues to insist that evidence remains sealed. What is Judge Markus concealing?", Baumgartner asked Mosier.
"As the case record makes very clear, Mr. Smith's defense in the intentional tort was allegedly illegally paid for by Benton-Carroll-Salem local schools system's insurance and lawyers whom my husband as a member of that Board of Education claimed were not authorized to provide a defense. Indeed other attorneys concur with my husband and me that your client improperly obtained a defense at public expense. Thus it is impossible for you to have submitted any bona fide invoices for defending against frivolous conduct by my husband, especially when my husband dismissed his claim without prejudice back in August 2002 due in part his frustration with the lack of court integrity".
Baumgartner points out that in the past week, the Ohio Attorney General stated that a judge who pled guilty to a sex crime was barred from holding future office due to age limitation of 70 years contained in the Ohio Constitution. "Ignoring the fact that some of the alleged judicial misconduct in the Ottawa County cases includes covering up sexual misconduct and or crimes of violence by public officials against women and children, the fact is Judge Markus is 75 years old and simply isn't fit for the bench any longer on that basis alone", Baumgartner alleges. "If people want to privately contract with him through his private company. that's their business but I should not be forced to have to endure a 75-year-old judge who pressed criminal charges against me to continue to abuse an office he is not entitled to hold" .
She also notes that a lawsuit was filed in U.S. District Court by a former superintendent of schools against a public servant for releasing protected confidential information. (See Larry Pitts v Perkins Local Schools and Mary Ann Baxter). "Judge Markus, several officers at the Ohio Supreme Court prosecutors, Kellen Smith, Attorney Charles Burns, you and other attorneys involved in my cases all knowingly released information from school systems, medical records, police reports, attorney records etc that was known to be protected under the Privacy Act in an effort to intimidate my husband as a public official, my daughter as a witness and me as an attorney and witness in pending civil cases", Dr. Baumgartner told Mosier.
"I objected to Judge Markus being hand picked to every single one of my cases in January 2004 by Chief Justice Moyer because: 1) he was over 70 years of age and showed signs of cognitive decline then which have worsened; 2) his appointment was filed with the court after he already appeared in the case and Chief Justice Moyer backdated that document to cover the improper billings and orders; 3) there was the appearance of judge shopping by Chief Justice Moyer, to wit, he assigned somebody he knew has a history of violating the rights of citizen critical of the judiciary and would punish me due my complaints about alleged abuse of the visiting judge system to throw cases to political insiders to the United States Department of Justice in 2001, and 4) visiting judges have an inherent financial interest in prolonging cases because they are paid by the hour and will cover up wrongdoing by others so they continue to be assigned cases".
Baumgartner said that "all my concerns as a litigant have been proven valid and the question must be asked if the Ohio Supreme Court and Bar under Chief Justice Moyer's leadership (criticized for the appearance of pay to play in deciding cases involving First Energy Corp) abides by any ethical standards whatsoever and if so will they ever be enforced?"
She noted that Ohio Rep. Jeff Wagner is proposing to introduce legislation that will return some checks on the unregulated and unaccountable power of Ohio judges under the current self policing and ineffective system.
"Reform is long overdue", she concluded. 10-01-05
June Maxam is the publisher of The North Country Gazette, co-publisher and editor of The Empire Journal and co-managing editor, copy/layout editor of Diogenes, magazine of the National Judicial Conduct and Disability Law Project.
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